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CHAPTER 7

OPTING OUT OF THE JURISDICTION OF A CUSTOMARY COURT

It is indicated above that the Commissioner for Customary Courts (Registrar for Customary Courts) shall have the power to transfer cases to other courts upon application by one of the litigants. This may happen if a party to a dispute, which would ordinarily be heard by a customary court, considers that such a court: “(a) is unreasonably delaying adjudication of the dispute; or (b) has unreasonably refused to hear and adjudicate upon that dispute”^[77]. He or she may report the matter to the Commissioner for Customary Courts to have the matter transferred to another court. The question is, however, can a party to a dispute demand transfer of his or her case to a magistrate’s court purely on the basis that he or she does not want to have the case heard and determined by a customary court.

In the Discussion Paper, the question was raised whether opting out should be permitted particularly for accused persons in criminal cases^[78]. A number of respondents supported the idea of opting out^[79]. On the other hand, during workshops in the provinces there was strong opposition by the traditional leaders to the idea of opting out. They argued that it was degrading to the customary courts for the litigants to demand transfer to other types of courts and that opting out would undermine the status of the courts and the confidence that the people have in them^[80]. They further argued that an aggrieved party always has the right to appeal. This is perhaps to be expected. Nevertheless, given the controversy surrounding the issue of the independence and impartiality of customary courts, it seems safer to leave the door open for objecting to the jurisdiction of the customary court and opting out in favour of a magistrate’s court or other court particularly in criminal proceedings. Thus, in clause 28(5) the draft Bill provides for opting out of the jurisdiction of a customary court in favour of another court of

competent jurisdiction.

^[77] Clause 28 of the draft Bill.

^[78] Para4.4.1

^[79] eg. Professor Kerr, Advocate Olivier SC, Professor Mqeke and the Joint Submission by CALS, CGE and NLC.

^[80] PB Monareng argues that: “If opting out is permitted, the Traditional Courts will be regarded as second class courts and this will tarnish the dignity of those who preside in them.”