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CHAPTER 1

BACKGROUND TO INVESTIGATION

The administration of justice in rural South Africa is predominantly carried out by chiefs’ courts, which administer justice largely on the basis of customary law. The operation of these courts is governed by a number of statutes, both of the old South Africa^[1] and of the former homelands and self-governing territories^[2]. The continued operation of homeland statutes is sanctioned by item 2 of Schedule 6 of the 1996 Constitution. The President has by proclamation assigned these laws to the relevant provinces^[3].

There is a need to consolidate the different provisions governing these courts and to modernise them so that their operation is in conformity with the principle of democracy and other values underlying the Constitution. To this end, a discussion paper entitled “Traditional Courts and the Judicial Function of Traditional Leaders”, was prepared by the South African Law Commission and circulated for public discussion and comment. Submissions were solicited in the form of comments and suggestions for reform of the traditional court system with a deadline of 30 June 1999. Comments and representations were received by the Commission from academics, magistrates, women’s groups and other interested persons.

On 9 September 1999, an academic workshop entitled “Customary Courts” organised jointly by the Centre for Indigenous Law (UNISA) and the Congress of Traditional Leaders of South Africa (CONTRALESA) in cooperation with the Commission, was held in Pretoria. Sixteen presentations were made at the workshop.

During June and July 1999, workshops were held in all the provinces that have traditional leaders and traditional structures, namely the Eastern Cape, Free State, Kwazulu-Natal, Mpumulanga, North West and Limpopo, formerly, Northern Province. These workshops were well attended with most stakeholders represented. In particular, traditional leaders of all ranks (chiefs, headmen and sub-headmen), magistrates, prosecutors, representatives of the regional offices of the Department of Justice, academics and ordinary people under the leadership of traditional leaders attended the workshops. In some provinces, representatives of provincial houses of traditional leaders, women’s groups and local council members also attended.

At the workshops, discussion centred around the recommendations of the Commission contained in the Discussion Paper. The recommendations had been translated into all major African languages used in South Africa. Some of the issues were the composition of the customary courts, their civil and criminal jurisdiction, the position and role of women, legal representation and the coordination and monitoring of these courts.

On the whole, the participants agreed with the recommendations of the Commission. Reservations on certain recommendations by some of the participants and those made in written submissions are discussed in this report. A concern was, however, raised with the Commission that women had not been sufficiently represented at these workshops. After discussions on the matter between the Law Commission, the Commission on Gender Equality, the Centre for Applied Legal Studies and the National Land Committee, it was decided to host more workshops and consultations with women’s groups to solicit their views on the operation of traditional courts and hence allow for a more balanced picture.

Workshops with women and women’s groups were held between 7 and 20 September 1999, in KwaZulu-Natal, Limpopo, Eastern Cape and North West provinces. The workshops and consultations concentrated on rural women and field workers active in the rural development context who would provide a perspective different to that advanced by traditional leaders^[4]. The views gathered in these workshops and consultations are contained in a report of the consultation process (which is available from the Law Commission on request) and in a paper prepared and submitted to the Commission jointly by the Centre for Applied Legal Studies (CALS), the Commission on Gender Equality (CGE) and the National Land Committee (NLC). These views are referred to from time to time in this report where relevant.

It is clear that wide consultation with stakeholders took place and many written submissions were made to the South African Law Commission on the Discussion Paper. The task team set up by the Project Committee on Customary Law to draft a bill on customary courts had a wealth of information to guide its deliberations. This report attempts to convey a sense of the discussions and debates that went on in the different fora during this process and to express the dilemmas faced by the project committee and the Commission in choosing whatever options were eventually adopted in the draft Bill.

^[1] The Black Administration Act 38 of 1927.

^[2] For instance the Bophuthatswana Traditional Courts Act 29 of 1979; the KwaNdebele Traditional Authorities Act 8 of 1984, the Chiefs Courts Act 6 of 1993 (Transkei), the KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990.

^[3] Assigned in terms of item 14 of schedule 6 of the Constitution of the Republic of South Africa 108 of 1996.

^[4] Joint Submission to the South African law Commission on Discussion Paper 82 “Traditional Courts and the Judicial Function of Traditional Leaders” by Centre for Applied Legal Studies (WITS), the Commission on Gender Equality and the National Land Committee, December (1999) 1.