CHAPTER 4

PROCEDURE AND EVIDENCE

4.1 Procedure in customary courts

According to the Black Administration Act and the statutes dealing with customary courts in former homelands, the procedure to be followed in resolving disputes is the customary law of procedure. Most commentators on customary procedure agree that it is simple, informal and flexible and puts the parties at ease^[45]. This in turn makes them willing participants in seeking a resolution of the problem at issue. Each party is allowed to present his or her side of the story, to introduce witnesses and to question the other party and his or her witnesses. The procedure takes an inquisitorial form where the presiding adjudicator and his advisors do a lot of the questioning of the parties and the witnesses. In the absence of lawyers, the court does the examination and cross-examination. Even people who are not members of the court, but who are present in court may participate in the proceedings by posing questions to the parties. This community participation adds to the acceptability of the customary legal process.

The draft Bill confirms the use of the above procedure in customary courts by providing that “subject to this Act and other enactments, the customary law of procedure and evidence shall apply in customary courts.”^[46] There were no negative responses to the suggestion to maintain the traditional position in as far as the simplicity of proceedings, the inquisitorial nature of trials and public participation were concerned. However, the Joint Submission of CALS, CGE and the NLC took issue with the idea of public participation in the present chiefs’ courts. It argued that in a number of areas women’s participation is denied or highly restricted. It is said for instance that in the Mchunu tribe in KwaZulu-Natal, women are not permitted to bring cases before the chief’s courts. The submission further refers to findings of research done in a village in Limpopo for this particular submission where it was found that “women are neither allowed to attend court proceedings, nor to question litigants. They are only allowed in court as complainants”. On the other hand male members of the community were permitted to question litigants and participate in proceedings. The submission recommends that legislation expressly state that women are accorded equal status in traditional courts and should be allowed to participate freely^[47]. It may, however, not be necessary to make such a specific reference to women’s equal participation since clause 7(2) of the draft Bill already states that customary courts must give effect to Chapter 2 of the Constitution, in particular section 9 and section 39(2). Nevertheless, the further point made in the joint submission that there should be public awareness campaigns on this issue is appreciated and should be pursued.

During workshops with traditional leaders there was consensus that women should participate in proceedings like other members of the community. It was generally agreed that popular participation was a cornerstone of the traditional system of justice.

4.2 Penalty for false evidence

In the interest of simplicity and in order to encourage popular participation and rendering of assistance to the court to arrive at just decisions, the strict rules of evidence are not adhered to in customary courts. For instance, the rule against hearsay evidence does not apply in these courts.

In the Discussion Paper it was suggested that the giving of false evidence should be prohibited. Thus, in the first draft of the bill it was provided that persons who give evidence, whether on oath or not, which they know or believe to be false shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred rand. However, this would be a departure from traditional customary procedures where perjury is no offence^[48]. The project committee on customary law decided to maintain the customary position and not to criminalise what may be false testimony.

4.3 Summoning of witnesses and parties

In order to give credibility and respect to customary courts, the draft Bill includes a provision that empowers the court to summon any person who is a defendant in an action or who is required to give evidence^[49]. The customary court is further empowered to order the arrest of a person who fails to appear or fails to remain in attendance until excused by the court. Such a person may be arrested and brought before the court by a messenger of the customary court, or if unable to do so, by a messenger of the magistrate’s court or a police officer^[50].

4.4 Contempt of Court

The draft Bill strengthens the hand of the customary courts further by providing for the offence of contempt of court. As Mqeke argues, people need courts with teeth otherwise they resort to kangaroo courts. A person commits the offence of contempt of the customary court if (1) he/she disobeys an order given by a customary court without lawful excuse, (2) insults a sitting of the court or wilfully disturbs the peace or the order of the proceedings in the court. A person found guilty of contempt of court may be summarily sentenced to pay a fine not exceeding fifty rand^[51].

4.5 Paralegals and record keeping of court proceedings

The proposal in the Discussion Paper that paralegals be appointed by the Ministry of Justice to customary courts, did not find favour with Koyana, Bekker, Kerr and participants in the provincial workshops^[52]. In the provincial workshops, the general feeling was that paralegals would undermine traditional leaders, and councillors would be rendered redundant. In those provinces where there was agreement with the suggestion of appointing paralegals, it was suggested that traditional leaders should recommend specific people to the Minister for appointment. Only in the North-West was there unreserved support for paralegals.

There was, however, unanimous support for the continuation and improvement of recordkeeping in customary courts as recommended in the Discussion Paper. Traditional leaders were generally of the view that existing tribal authority clerks or secretaries should be trained in better record keeping. The question remains whether customary courts should be courts of record involving the recording of complete proceedings and whether the record should be used on appeal. The general view appears to be that customary courts are not equipped and are not likely to be equipped, both in material and human resources terms to carry out such a task. Rather, customary court clerks should make concise summaries of the case similar to the situation under existing chiefs’ courts rules, “where immediately after pronouncement of judgment ...the chief shall prepare or cause to be prepared a written record in quadruplicate, containing the following particulars:-

(a) Name of plaintiff
(b) Name of defendant
(c) Particulars of claim
(d) Particulars of defence
(e) Judgement
(f) Date of judgment”^[53]

The record must be forwarded to the magistrate of the area in which the defendant is resident.

Under the draft Bill, it is proposed that customary courts must keep written records of their proceedings containing the particulars of the case and the judgment^[54]. Copies of these records of the cases heard by each court must be sent to the Commissioner for Customary Courts for the province in which the court falls. Currently, the original record is sent or delivered by messenger to the magistrate’s court in whose area of jurisdiction the chief’s court falls. Under current regulations, the traditional leader or a person designated by him or her compiles the record. The Rules provide that where due to illiteracy, the record cannot be made by the chief or someone under the chief, he or she may verbally furnish either personally or by messenger, the particulars of the case heard by him to the clerk of the magistrates court^[55]. It is envisaged that under the new system, the customary courts will have a clerk who is literate and who can compile a record for the purposes of the Act. It is not suggested that the full record be sent to the Commissioner because it is felt that the Commissioner would not have the capacity to peruse all the records. Rather, the Commissioner has the power to demand the record where it becomes necessary for purposes of an investigation into a complaint or for another purpose.

4.6 Legal Representation

One issue that has been a subject of debate is whether legal practitioners should have audience in customary courts. On the one hand, it is noted that in most African countries where customary courts or traditional courts are found, including South Africa, legal practitioners are barred from appearing in these courts on behalf of clients. On the other hand it is recognized that in the new South Africa, exclusion of legal practitioners from these courts could be in conflict with section 35 of the Constitution, at least with respect to persons accused of committing criminal offences^[56].

A number of reasons have been advanced for excluding legal practitioners from traditional courts. Firstly, litigants in these courts are normally the very poor who cannot afford lawyers’ fees, which means that in civil cases a poor litigant confronting or confronted by a wealthy opponent is likely to be prejudiced^[57].

Secondly, the issues that come before these courts are usually simple cases, which do not need complicated legal arguments by counsel^[58]. Participants in the process, as indicated above, are generally knowledgeable in customary law and need no assistance from lawyers.

Thirdly, lawyers tend to dwell on technicalities of law and procedure, which cause delays and in traditional courts would undermine the very essence of such courts, that is, expeditiousness in disposing of cases, flexibility and simplicity. As Chief Justice Cotran once said in respect of a similar debarring of practitioners from Lesotho’s customary courts: “there are several dozen local courts dotted around the country. They are easily accessible to most people, and at little expense, the disputes are simple and can adequately be dealt with by those courts. If representation was allowed as of right, cases would not be completed and one or the other party would be able, through delay, virtually to defeat the ends of justice.”^[59]

Fourthly, legal representation would introduce a problem relating to language. One of the advantages of traditional courts, as indicated above, is that the language of the court is the local language of the community in the area of jurisdiction. The preferred lawyer may not speak or understand such language and may have to address the court in a language that members of the court do not understand. This would then necessitate the introduction of interpreters with the possible risk of distortion, not to mention additional cost^[60].

In their submission on the Discussion Paper, Koyana and Bekker argue against introducing audience for legal practitioners in customary courts. They argue such a move would entail employment of court staff such as interpreters and clerks of court, providing equipment such as computers and fax machines to deal with lawyers. It would also mean training for presiding officers, rules of court, arranging legal aid on par with other courts etc.

On the other hand, some respondents have argued for audience for legal practitioners. Kerr for instance, argues that customary law and practice has always recognised the right of a person to speak on behalf of another in court as the latter’s spokesman although such a person did not have the sole right to address the court. He refers to a 19th Century source where the phrase ‘advocate for the defendant’ is used^[61]. Kerr argues that those with skills should be allowed to speak irrespective of their qualifications. He opines: “if a court wishes to do justice according to customary law, it needs the participation of lawyers whose questions to those involved on the other side and whose arguments on the law will assist the court”. However, it may be argued that the traditional leaders and their councillors are supposed to be the experts, the custodians of customary law, and should not need the expertise of lawyers to guide them on the law. At the same time any person attending the court is free to speak, whether in favour of a particular litigant or generally on the case, in accordance with customary law.

In short, the main reason for excluding legal practitioners is the real danger that allowing them would irrevocably change the very nature of conducting business in customary courts and rob the system of customary dispute resolution of many of its virtues. The purpose of the draft Bill is not to introduce customary courts that are unrecognisable by the people they are supposed to serve but to rationalise and make more efficient the traditional courts that have served communities for centuries.

On the question of possible prejudice to an accused person before the customary court, it is argued that the customary procedure to a large extent assures that justice will be done for the accused. This includes the fact that the accused is assisted by any person he or she chooses, that the presiding person can ask questions for clarification and that any person attending court may ask questions and speak on the matter before the court in a way that may assist the court to arrive at the truth. It is thus suggested that exclusion of legal practitioners in their professional capacity from representing clients in customary courts would not fall foul of constitutional requirements but on the contrary is consistent with the purpose of the Constitution to respect cultural diversity and the place of customary law in the national legal system.

During the provincial workshops, a specific question was asked of the participants as to whether legal practitioners should be allowed in customary courts. The general view in all the provinces was that they should be barred from appearing in these courts. The preponderance of academic opinion in the submissions was also that legal practitioners should continue to be excluded from customary courts.

The draft Bill comes out with a position that allows for representation in accordance with customary law. The understanding here is that by implication legal practitioners are excluded since they are not known to customary law. Since customary law does not distinguish among spokespersons as to whether they are legally qualified or not, it is theoretically possible for a person with legal qualifications to appear in the customary court as spokesperson for one of the parties. However, he or she would have to conduct himself or herself in a manner suited to the lay nature of the court^[62].

^[45] For instance Dlamini C (supra) 24; Koyana DS "The indigenous constitutional system and the role of the customary courts today." Presented at the Public Hearing on Traditional Authorities and Customary Law and Practice. Constitutional Assembly, 12-13 May, 1995. See also Elias TO The nature of African Customary Law (1956).

^[46] Clause 11.

^[47] However, Mqeke argues that in most traditional authorities there is no gender discrimination.

^[48] Bekker JC Seymour’s Customary Law in Southern Africa 5 ed (1989) 29.

^[49] Clause 8

^[50] Clause 8(3)

^[51] Clause 17.

^[52] Mqeke on the other hand supports the use of paralegals in view of the abundance of such persons who are not adequately utilised. Advocate Peter Manda of the National Paralegal Institute strongly supported the use of paralegals in customary courts, especially as there are institutions to train them.

^[53] Rule 6(1) of Chiefs and headmen’s civil courts Rules, No R2082 of 1967 Government Gazette Extraordinary No 1929. See also clause 12(2) of the draft Bill.

^[54] Clause 12

^[55] Rule 6(6).

^[56] Section 35(3) states that every accused person has a right to a fair trial, which includes “(f) to choose, and be represented by a legal practitioner and to be informed of this right promptly”.

^[57] In this connection see also TW Bennett Human Rights and African Customary Law (1995) 78-9.

^[58] Kerr, however, argues that customary law cases are not simple. He maintains that questions dealing with inheritance or marriage or land tenure may be complicated requiring argument by lawyers to assist the court. However, it may be countered that a lawyer addressing a complex issue to a group of lay men and women may not be assisting the court but making things more difficult.

^[59] Mahloane v Letele H.C. Civ/Apn/93/1974 quoted by Koyana and Bekker.

^[60] Koyana and Bekker agree with this contention in their submission.

^[61] Colonel McLean’s Compendium of Kafir laws and Customs (1858) 41 referred to by Kerr.

^[62] The provision reads as follows: “A person who is a party to a matter before a customary court may be represented by any other person of his or her choice in accordance with customary law.” (Clause 15)

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