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CHAPTER 9

CONCLUSION

The need for legislation to consolidate and streamline the various laws currently governing the operation of customary laws was recognised by government. The South African Law Commission undertook the task of producing a draft Bill for the above purpose.

A working paper discussing the issues involved and containing recommendations as to how the courts should function in future was circulated for comment and seminars and workshops were organised around the Discussion Paper.

The report collates the different and sometimes widely divergent views on the role and functioning of customary courts. Although there was general agreement on most issues, there were also issues on which there was serious disagreement among stakeholders.

Some of the contentious issues are: the constitution of customary courts, jurisdiction over family matters and over domestic violence; imposition of monetary limitation of jurisdiction both in civil and criminal matters; how to deal with fines; appeals from customary courts, supervision of the courts and the exclusion of legal representation. In resolving the disputes over these issues, the Commission attempted to balance the interests of all stakeholders while taking into account human rights and constitutional considerations.

Some of the problematic issues are not finalised. The draft Bill includes alternatives on such issues leaving room for finalisation after further discussion between the Commission and the Ministry of Justice. One such issue is the constitution of a customary court and another is the process of appeals. Ultimately, these unresolved issues are matters of policy and may have to be decided at a political level.

There was divergence of views particularly between women’s groups and traditional leaders. However, it is hoped that the draft Bill will be generally acceptable to all interest groups and represents necessary and desirable progress in the functioning of customary courts.