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CHAPTER 6

SUPERVISION OF CUSTOMARY COURTS

The idea of supervision or monitoring of customary courts by an official of the Ministry of Justice was floated in the Discussion Paper. The idea was to set up a secretariat to supervise traditional courts, to act as a complaints directorate, channel reviews, oversee the budget and conditions of service, and generally to regulate and promote traditional courts in a way that acknowledges how they differ from western-style courts in their culture, composition and functioning. This would be similar to the office of the Commissioner for Customary Courts in Botswana and the Judicial Commissioner in Lesotho and Swaziland. Respondents to the Discussion paper were asked to comment on whether such a secretariat was advisable in South Africa.

Most of the responses on this issue were positive. For instance, Professor Mqeke states:

“The office of a Commissioner for Customary Courts would be a great improvement as such an officer would coordinate judicial services in the chiefs’ courts and promote training of the court personnel. Such an officer would also strive for uniformity on such crucial issues as jurisdiction, the imposition of appropriate sentence and the identification of areas where training is urgently needed in order to upgrade the quality of justice in these courts.”

On the other hand, Advocate Olivier argues that a separate secretariat should not be set up but rather that coordination and supervision should be done within existing structures of the Ministry of Justice. He argues that a separate institution would be an unnecessary burden on the tax payer. PB Monareng also opposes the idea on the ground that it would undermine the authority of the traditional leaders.

During the workshops with traditional leaders and other stakeholders in the provinces, there was support for the establishment of a secretariat and the office of a Commissioner for Customary Courts (which is called the ‘Registrar for Customary Courts’ in the draft Bill) and especially for the coordination and training aspect thereof. The only exception was KwaZulu- Natal, where the view was expressed that supervision should be done by the local magistrate in his/her area of jurisdiction as is the case at present. Professor Kerr supports the view of KwaZulu-Natal.

The different views were considered in the project committee. It seemed to the committee that the preponderance of opinion was in favour of a Commissioner for Customary Courts or secretariat. The preponderant view was that keeping the supervision and monitoring of customary courts away from magistrates courts and leaving the process to a dedicated office would insulate customary law and its adjudicatory procedures from encroachment by the common law through too much association with magistrates’ courts. The commission would preserve a strictly customary universe, sufficient unto itself until human rights and constitutional considerations compelled referring out of a matter to the general law system where it could progress all the way to the Constitutional Court if necessary. Thus, the creation of the office of a commissioner to supervise the customary courts does not mean shielding customary law abuse from constitutional or further judicial scrutiny or review. Such a dedicated office together with the creation of customary appeal courts would keep the promise to the rural people that the reform process would honour the way they dispense justice and would deliver to them customary law that was recognisable and that would hold sway in the bulk of their affairs. At the same time, the system would ensure that the law and procedure of customary courts was consistent with the values of the Constitution. Based on the above responses and considerations, the draft Bill provides for the establishment of the office of Commissioner for Customary Courts (which is called the Registrar for Customary Courts in the draft Bill)^[74].

Although the original idea was to have one national secretariat with a Commissioner for Customary Courts assisted by assistant Commissioners in the relevant provinces, the project committee on customary law decided that it is better to decentralise the process and have a Commissioner for Customary Courts with a secretariat in each province where customary courts exist. The draft Bill reflects this position^[75].

The other issue that arose in relation to the office of Commissioner for Customary Courts is whether the commissioner should have judicial powers or only administrative powers. On the one hand, it was argued that cases emanating from customary courts, especially civil cases, should be kept out of the “western” magistrates’ courts. In such cases, reviews would go to the Commissioner for Customary Courts who would dispose of them. The Commissioner would then have the power to vary the decision of the customary court or refer the case back for retrial by the same or another court. On the other hand, there was the view that the Commissioner should not have any judicial powers but should serve purely administrative and fiscal duties as the controller of the courts and as a kind of jurisdictional traffic officer directing matters out when the need arises or keeping them where they are if no injustice has or is likely to occur. It is thought that in accordance with the principle of separation of powers, a person performing predominantly administrative functions should not at the same time function as a judicial officer^[76].

A middle way is adopted in the draft Bill. According to clause 24 the Commissioner for Customary Courts shall largely have administrative functions. His or her functions include: (a) advising the Minister in respect of the constitution, jurisdiction and membership of customary courts, (b) subject to the general and special directions of the Minister, the guidance and supervision of customary courts and (c) such other matters and duties as may from time to time be assigned to him by the Minister. In addition to these powers, the Commissioner may, on application by one of the parties to a dispute or by an accused person appearing before a customary court, inquire into a matter and, if it appears to him to be in the interests of justice, order the transfer of the matter for hearing by another customary court or a magistrate’s court of competent jurisdiction. The Commissioner may, however, decline to exercise the power to transfer if such transfer is not justified.

^[74] Clauses 24 and 25 of the draft Bill.

^[75] Ibid

^[76] See De Lange v Smuts NO 1998 SA 785 (CC), 1998 (7) BCLR 779 (CC); South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC), 2001 (1) BCLR 77 (CC). The principle of separation of powers does not appear to apply to traditional leaders and their councillors but should apply to a nontraditional creation such as a customary court’s commissioner.