CHAPTER 8

APPEALS

The hierarchy of courts for purposes of appeals from customary courts remains an unresolved issue. The main issues of debate are: the number of tiers in the customary system and once the tiers are decided, where such courts should fit in the general hierarchy of courts in the country. A major question is whether customary courts should be below the magistrates’ courts with appeals going to the latter or whether customary courts should have a unique and distinct hierarchy including customary courts of appeal (notionally at the same level as magistrates courts) from which appeals would go to the High court, the Supreme Court of Appeal and, where applicable, to the Constitutional Court.

One view has been in favour of including the magistrate’s court in the system of appeals and reviews on the ground that it is in a better position to check on customary courts for any inconsistency with the Constitution and respect for human rights in their decisions. Another argument for appeals to the magistrate’s court is that it eliminates the need and expense of setting up customary courts of appeal. The other view is that magistrates are likely to reinterpret customary law in a way that undermines the whole system of customary justice and that to avoid this the customary system should remain distinct with its own court of appeal but with the possibility of further appeals to the superior courts.

The draft Bill includes a number of alternatives which are proposed in clause 27. The first alternative envisages appeals going from the lower level customary court to the higher level customary courts and if there is no higher level customary court, to the magistrate’s court^[81]. This would leave the customary court of appeal out of the system, making the magistrate’s court an important step in the appeal system.

The second alternative in the draft Bill envisages appeals from the lower customary court to a higher level customary court and where there is no higher level customary court, to a customary court of appeal^[82]. This model leaves out the magistrate’s court and emphasises the uniqueness of the customary system. Further appeals would go to the High Court, the Supreme Court of Appeal and the Constitutional Court.

The third alternative envisages a role for both the magistrate’s court and the customary court of appeal without increasing the number of tiers in the administration of justice. It provides for civil appeals (where the law applicable would be customary law) to go from the customary court to the customary court of appeal. At the same time it provides for appeals in criminal matters to go to magistrates’ courts, which would have better expertise on such matters. Another justification for criminal appeals going to magistrates’ courts would be that accused persons would be allowed to have legal practitioners representing them and would be able to invoke the application of section 35 of the Constitution regarding the rights of accused persons.

Two further alternatives were debated by the project committee on customary law but were considered unsatisfactory and therefore left out of the draft. One model would have seen appeals from customary courts going straight to the High Court and thus equating the higher level of customary court to the magistrate’s court. The advantage of this model would be cutting down the number of tiers in the system to a minimum. However, it would clutter the High Court with simple cases that would better be resolved at a lower level. The other model not included in the draft would have seen appeals from customary courts going to the customary court of appeal with a further appeal to the magistrate’s court and then the superior courts. This model would have the highest number of tiers in the system and was rejected on the ground that it would unnecessarily prolong finality of cases. It would also give a demeaning impression of the customary court of appeal.

In terms of the length of the appeal process there will be variation from area to area. Some areas have formal courts at village level under the control or oversight of the headman. It is from such lower level customary courts that appeals will lie to the ‘classical’ or typical customary courts under chiefs (higher level customary courts). In other areas, however, no formal headmen’s courts exist. At most, there are arbitration forums performing a quasi-judicial role and from which unresolved cases go to the customary court under a chief. However, it is envisaged that where a request is made to convert such informal forums to courts, they will be recognized as lower customary courts.

The final decision has to be made from the three options: the one which allows appeals from customary courts to a customary court of appeal, that which allows such appeals to go to the magistrate’s court and hence to the superior courts and that which would have civil appeals go to the customary court of appeal while criminal appeals went to the magistrate’s court. Whichever option is adopted will involve a 5-tier court system, excluding the Constitutional Court.

^[81] Clause 28(1)(a) and (b).

^[82] Second alternative to clause 27(a) and (b).

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