SUMMARY OF RECOMMENDATIONS

A summary of the recommendations contained in this Report is given below. In this summary, reference is made to relevant page numbers of the Report where each recommendation is to be found, as well as to the relevant clauses of the proposed draft Customary Courts Bill. Theserecommendations relate to the following issues:

1. Establishment of customary courts

It is recommended that customary courts should be established by the Minister and that they should have full powers of hearing and determining cases in both criminal and civil matters subject to limitations prescribed in the draft Bill. (Pages 4-5, clause 2 of the draft Bill)

2. Hierarchy of customary courts

In recognition of the diversity of customary dispute settlement systems in the country, a hierarchy of customary courts should be recognised and established. These courts may range from the headman’s court to the court of the paramount chief or king of a particular ethnic group. (Pages 5-6, clause 3 of draft Bill)

Headmen’s tribunals which are currently not recognised as courts should be granted formal recognition. (Page 6)

3. Composition of customary courts

The composition of a customary court should be in accordance with customary law of the area in which the court is established. In constituting the court, however, regard should be had to the constitutional values of democracy and equality. Councillors making up the court should be generally representative of the community as a whole and, in particular, should include a reasonable proportion of women. The Report contains alternatives, one of which could be adopted in the final version of the bill. (Pages 6-9, clause 4 of the draft Bill)

4. Jurisdiction of customary courts

4.1 Civil jurisdiction

In civil matters, customary courts should have jurisdiction over cases arising out of customary law. These courts should, however, not determine matters relating to dissolution of marriage, whether customary or civil, custody and guardianship of minors or maintenance. (Pages 10-12, clauses 5 and 8 of the draft Bill)

4.2 Criminal jurisdiction

Customary courts should have criminal jurisdiction in those cases where the offence is committed in the area of jurisdiction of the court. Offences listed in the schedule are excluded from the jurisdiction of customary courts. (Page 12, clause 6 of the draft Bill)

4.3 Monetary ceiling

A monetary ceiling on jurisdiction of customary courts should be fixed by the Minister from time to time. (Pages 15-17, clause 8 of the draft Bill)

5. Applicable Law

The law applicable in customary courts should be customary law and any other law, which the court may be authorized to administer. Thus, in criminal cases, the courts may apply the common law or statutory law. Customary courts should be required to have regard to sections 9 and 39 (2) of the Constitution in their application of the law. (Pages 13-15, clause 7 of the draft Bill)

6. Procedure in customary proceedings

The procedure to be followed in customary courts should be in accordance with the customary law and practice in the area of jurisdiction. A customary court should have the power to summon witnesses and to punish for contempt of the court. (Pages 18-20, clauses 10 and 14 of the draft Bill)

7. Record of proceedings

The customary court should keep a record of its proceedings consisting of a summary of each case heard. Every three months the court should submit a list of cases heard by it to the Registrar for customary courts of its province. (Pages 20-22, clause12 of the draft Bill)

8. Legal Representation

Legal practitioners should not have audience in customary courts. However, a party should have the right to choose any other person to speak on her or his behalf in accordance with customary law. (Page 22, clause 15 of the draft Bill)

9. Penalties

A customary court should have the power to impose penalties for offences including fines, orders to keep the peace, suspended sentences and community service. However, such a court should have no power to pass a sentence of imprisonment or corporal punishment. The Minister should determine the maximum fines that can be imposed. (Page 25-27, clauses 16, 21, 22 and 23 of the draft Bill)

10. Paying of fines into a special account

Each customary court should open a special account in which fines shall be deposited. The account should be administered by the traditional authority in whose area of jurisdiction the court operates and the money should be used for the development needs of the community in the area. (Page 26, clause 19 of the draft Bill)

11. Registrar for Customary Courts

It is recommended that a Registrar for Customary Courts should be appointed for each province where customary courts are established. The role of the Registrar for Customary Courts should be to guide and supervise customary courts, deal with complaints from members of the public about the operation of customary courts, consider the needs of customary courts, arrange for the training of members and clerks of the customary courts and where necessary transfer cases from one customary court to another and from customary courts to other courts. (Page 31, clause 24 of the draft Bill)

12. Opting out of jurisdiction and transfer of cases

In criminal matters, it is recommended that a defendant should have the right to opt out of the jurisdiction of a customary court in favour of any other court. In civil matters, a transfer may be obtained by application to the Registrar for Customary Courts’. (Page 32, clause 28 of the draft Bill)

13. Appeals

A litigant who is dissatisfied with a decision of a customary court has a right of appeal to a higher customary court and either to a customary court of appeal [if one is established] or to the magistrates court and further to the high court. (See alternatives discussed in chapter 8 and presented in clause 27 of the draft Bill)

14. Regulations

The Minister has the power to make regulations for giving effect to the provisions of the Act as set out in clause 31 of the draft Bill.

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