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Oxford University Commonwealth Law Journal Volume 12, 2012 - Issue 1
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Original Articles

Regulating Vernacular Dispute Resolution Forums: Controversy Concerning the Process, Substance and Implications of South Africa's Traditional Courts Bill

Sindiso Mnisi Weeks BA LLB (Cape Town), MSt DPhil (Oxon), Senior Researcher, Law, Race and Gender Research Unit and Senior Lecturer in African Customary Law, Department of Private Law, University of Cape Town.
Pages 133-155 | Published online: 07 May 2015

  • Zukile Majova, ‘Abathembu Secession Bid Set for Parliament’ Sowetan Live (Johannesburg, 6 January 2010) <http://www.sowetanlive.co.za/sowetan/archive/2010/01/06/abathembu-secession-bid-set-for-parliament> accessed 21 July 2011; Bongani Hans, ‘Thembu King: We're Leaving’ Dispatch Online (Mthatha, 8 January 2010) <http://m.dispatch.co.za/(S(vnostr55rjnymw55hahlhjqe))/default.aspx?id=12&articleid=368697> accessed 21 July 2011; ‘Is This SA's Mad King George?’ Business Day (Johannesburg, 25 January 2010) <http://www.businessday.co.za/articles/content.aspx?id=91943> accessed 21 July 2011.
  • ‘Row Over South Africa Xhosa King's Secession Bid' (BBC News, 6 January 2010) <http://news.bbc.co.uk/2/hi/8443772.stm> accessed 21 July 2011; Sebastien Berger, ‘Nelson Mandela's Tribal Chief Declares Secession from South Africa' The Telegraph (London, 22 January 2010) <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/southafrica/7046521/Nelson-Mandelas-tribal-chief-declares-secession-from-South-Africa.html> accessed 21 July 2011.
  • The traditional structure in which cattle are kept.
  • Traditional huts made of mud with thatched roofs.
  • A kind of long, thick and firm whip.
  • Since then, the Commission on Traditional Leadership Disputes and Claims, which was established under s 22 of the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA 2003), has confirmed Dalindyebo's status as king. See report at <http://www.info.gov.za/view/DownloadFileAction?id=81349> accessed 21 July 2012.
  • Traditional Courts Bill [B1-2012] (TCB 2012) s 10(2)(i).
  • The social basis of land rights in terms of customary law is discussed by Ben Cousins, ‘Characterising “Communal” Tenure: Nested Systems and Flexible Boundaries' in Aninka Claassens and Ben Cousins (eds), Land, Power & Custom: Controversies Generated by South Africa's Communal Land Rights Act (University of Cape Town Press 2008).
  • Debbie Budlender estimates that 16.5 million South Africans live in the former homelands. See Claassens and Cousins, Land, Power & Custom (n 8) 4 and n 2 contained therein.
  • Submissions made to the Portfolio Committee on Justice and Constitutional Development on the Traditional Courts Bill [B1–2012] in May 2008, and to the Portfolio Committee on Rural Development and Land Reform on the Black Authorities Act Repeal Bill [B9–2010] in July 2010, provide evidence of these deficiencies (the latter was enacted as the Black Authorities Act Repeal Act 13 of 2010). Available at <http://www.pmg.org.za/report/20080513-traditional-courts-bill-b15-2008-department-justice-briefng-and-publ> accessed 21 July 2012; <http://www.pmg.org.za/report/20100720-public-hearings-black-authorities-act-repeal-bill-b9–2010> accessed 21 July 2012.
  • See documents contained in n 10.
  • Headnote and Preamble of the TCB 2012 (n 7).
  • Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005; Draft Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37–2010].
  • Section 12 originally read:
  • The Governor-General may authorize any native chief recognised or appointed… to hear and determine civil claims arising out of native law and custom by Natives against Natives resident within his area of jurisdiction brought before him…
  • The judgment of such chief shall be executed in accordance with such procedure as may be prescribed by regulation under sub-section (5).
  • Any party dissatisfed with the judgment of a native chief may, in the manner and within the period prescribed by regulation, notify such chief (or his representative) of his intention to appeal to the native commissioner, and thereupon such judgment shall be suspended until the decision is given on such appeal: Provided that such appeal is prosecuted within the period prescribed by regulation.
  • The Court of native commissioner may confirm, alter or set aside the judgment after hearing such evidence (which shall be duly recorded) as may be tendered by the parties to the dispute, or may be deemed desirable by the court.
  • Section 20 originally read:
  • The Governor-General may grant to any native chief jurisdiction over members of his own tribe resident or being upon tribal land or in a tribal location within his area in respect of offences punishable under native law and custom….
  • In the exercise of jurisdiction conferred upon him under sub-section (1), a chief may impose a fine not exceeding two head of cattle or five pounds upon any person convicted by him of any such offence.
  • The procedure at the trial of any offence under this section the manner of execution of any penalty imposed in respect of such offence, and the appropriation of fines shall, save in so far as the same may be specifed by regulation which the Minister is hereby authorised to make, be in accordance with native law and custom.
  • Any conviction under this section shall be subject to appeal to the magistrate in the manner and within the period prescribed by regulation.
  • TCB 2012 (n 7), Preamble and ss 2–3.
  • Alexkor Ltd and Another v the Richtersveld Community and Others [2003] ZACC 18 (South African Constitutional Court (SACC)); Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others [2004] ZACC 18 (SACC); Shilubana and Others v Nwamitwa [2008] ZACC 9 (SACC); Gumede v President of the Republic of South Africa and Others [2008] ZACC 2003 (SACC) all acknowledge the ‘customary law’ referred to in the Constitution as that which is lived and developed through practice by the people who observe it. This is otherwise termed ‘living customary law’.
  • Alexkor (n 17); Bhe (n 17); Shibi (n 17); Shilubana (n 17); Gumede (n 17).
  • See eg Frederick John Dealtry Lugard, The Dual Mandate in British Tropical Africa (William Blackwood and Sons 1922); Kristinn Mann and Richard Roberts, Law in Colonial Africa (Heinemann 1991); Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press 1996); Martin Chanock, The Making of South African Legal Culture, 1902–1936: Fear, Favour and Prejudice (CUP 2001).
  • Victoria Bronstein, ‘Reconceptualizing the Customary Law Debate in South Africa’ (1998) 14 South African Journal on Human Rights 388; Barbara Oomen, Chiefs in South Africa: Law, Power and Culture in the Post-Apartheid Era (James Currey Ltd 2005); Lungisile Ntsebeza, Democracy Compromised: Chiefs and the Politics of Land in South Africa (HSRC Press 2006).
  • [2010] ZACC 10 (SACC).
  • Tongoane (n 21) [110].
  • Tongoane (n 21).
  • Motion from the Chief Whip of the Majority Party to the Speaker of Parliament (undated), submitted circa 16 September 2010.
  • The information in this discussion is correct as of 3 May 2012.
  • South African Law Reform Commission, Report on Traditional Courts and the Judicial Function of Traditional Leaders, Project 90 (January 2003) 1–2 (SALRC Report).
  • SALRC Report (n 26) 1–2.
  • South Africa has 11 offcial languages, according to s 6(1) of the Constitution (n 16).
  • SALRC Report (n 26) 2.
  • Of South Africa's nine provinces, these four are among the five provinces with the most signifcant traditional, rural African populations. The other is Mpumalanga.
  • SALRC Report (n 26) 2.
  • The Commission for Gender Equality (CGE), the Centre for Applied Legal Studies (CALS) and the National Land Committee (NLC), Draft Submission for Comment: Traditional Courts and the Judicial Function of Chiefs (November 1999) 1 (CGE, CALS and NLC Report). See also SALRC Report (n 26) 2.
  • See the Parliamentary Monitoring Group report, ‘Traditional Courts Bill: Department of Justice Briefng’ (1 September 2009) <http://www.pmg.org.za/report/20090901-department-justiceconstitutional-development-traditional-courts-bill> accessed 7 December 2010.
  • This appears to be a distinct political choice that distances the Department in language as much as in substance from the choices made by the SALRC, which determined that ‘customary courts’ was the less loaded or controversial term.
  • TCB 2012 (n 7) s 1 (emphasis added).
  • TCB 2012 (n 7) s 1.
  • Address to National Workshop on the Traditional Courts Bill, 2008 (Johannesburg, 11 November 2009).
  • TLGFA 2003 (n 6) s 3(2)(b).
  • TCB 2012 (n 7) s 9(5)(b) (emphasis added).
  • TLGFA 2003 (n 6) s 20(1), especially sub-s (f).
  • TCB 2012 (n 7) ss 4(5)(a), 9(2), 16, 19, 20, 21. In sections 4, 9, 20 and 21, in particular, it is clear that the presiding Officer is conceived of as a figure somewhat akin to a magistrate or judge as he is the one to be trained, to ensure that proceedings are fair and not to be offended. This makes his role in the court primary, which is inconsistent with living customary law.
  • TCB 2012 (n 7) ss 4(1), 4(2).
  • TCB 2012 (n 7) s 1.
  • TLGFA 2003 (n 6) s 1.
  • TLGFA 2003 (n 6) ss 13–15.
  • TCB 2012 (n 7) s 4(4) (emphasis added).
  • TCB 2012 (n 7) s 4(4).
  • TCB 2012 (n 7) s 1.
  • cf BAA 1927 s 20 (n 14). The amended s 20(1) then read: The Governor-General may confer upon any native chief or headman jurisdiction to try and punish according to native law and custom, any Native who has committed, in the area under the control of the chief or headman concerned, any offence specifed by the Governor-General, which is punishable under native law and custom.
  • In Tongoane (n 21) [24], the Chief Justice notes that: The Black Authorities Act gave the State President the authority to establish “with due regard to native law and custom” tribal authorities for African “tribes” as the basic unit of administration in the areas to which the provisions of CLARA apply… It is these tribal authorities that have now been transformed into traditional councils for the purposes of section 28(4) of the Traditional Leadership and Governance Framework Act, 2003 (the Traditional Leadership Act). And in terms of section 21 of CLARA, these traditional councils may exercise powers and perform functions relating to the administration of communal land (emphasis added).
  • The court finally, declares [25] that ‘[u]nder apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands.’ Despite the government's attempts to convince the public that this undemocratic process in the past has been rendered democratic merely because its outcomes are now promulgated in contemporary legislation—albeit legislation that was not very democratically formulated—the argument remains thoroughly unpersuasive.
  • William David Hammond-Tooke, Command or Consensus: The Development of Transkeian Local Government (D Phillip 1975) 77.
  • SALRC draft Bill, cl 3, in SALRC Report (n 26) Annex A.
  • SALRC Report (n 26) xi. See also SALRC Report (n 26) 5.
  • SALRC Report (n 26) 5 (footnote omitted).
  • SALRC draft Bill (n 52) cl 4(2).
  • SALRC Report (n 26) 7–9.
  • SALRC Report (n 26) 19.
  • SALRC Report (n 26) 18.
  • SALRC Report (n 26) 19.
  • SALRC Report (n 26) 19.
  • TCB 2012 (n 7) sch 1.
  • S 35(3)(f) of the Constitution provides everyone with the right to legal representation when accused of committing a crime.
  • SALRC draft bill (n 52) cl 6.
  • SALRC Report (n 26) 12.
  • See (n 14) and attached text. See also TCB 2012 (n 7) s 1.
  • SALRC draft bill (n 52).
  • SALRC draft bill (n 52) cl 28.
  • SALRC Report (n 26) 32; SALRC draft bill (n 52) cl 28(1), (5)–(6).
  • SALRC Report (n 26) 32.
  • TCB 2012 (n 7) ss 10(2)(a)–(b).
  • TCB 2012 (n 7) s 10(2)(c).
  • TCB 2012 (n 7) s 10(2)(d).
  • TCB 2012 (n 7) s 10(2)(e).
  • TCB 2012 (n 7) s 10(2)(f).
  • TCB 2012 (n 7) s 10(2)(g) reads: ‘an order that one of the parties to the dispute, both parties or any other person performs some form of service without remuneration for the beneft of the community under the supervision or control of a specifed person or group of persons identifed by the traditional court’.
  • TCB 2012 (n 7) s 10(2)(h) reads: ‘an order that one of the parties to the dispute, both parties or any other person performs some form of service for or provides some beneft to, a specifed victim or victims'.
  • TCB 2012 (n 7) s 10(2)(i) reads: ‘an order depriving the accused person or defendant of any benefts that accrue in terms of customary law and custom’.
  • TCB 2012 (n 7) s 10(2)(j).
  • TCB 2012 (n 7) s 10(2)(k).
  • TCB 2012 (n 7) s 10(2)(l).
  • TCB 2012 (n 7) s 10(1).
  • Cousins (n 8) 114–15 discusses how access to land may be founded on community membership.
  • TCB 2012 (n 7) s 11(2)(c).
  • TCB 2012 (n 7) s 10(2)(c).
  • TCB 2012 (n 7) s 10(2)(g).
  • TCB 2012 (n 7) s 13(1).
  • TCB 2012 (n 7) s 14(1).
  • TCB 2012 (n 7) s 16(3)(a).
  • TCB 2012 (n 7) s 16(3)(b).
  • SALRC draft bill (n 52) cls 16, 21–23.
  • SALRC draft bill (n 52) cl 19. TLGFA (n 6) s 5 includes a similar provision.
  • SALRC draft bill (n 52) cl 8.
  • SALRC draft bill (n 52) cl 23.
  • TCB 2012 (n 7) s 16(4)(b).
  • TCB 2012 (n 7) s 16(4)(c)(ii).
  • TCB 2012 (n 7) s 16(4)(c)(iv).
  • TCB 2012 (n 7) s 16(4)(c)(vii).
  • SALRC draft bill (n 52) 13.
  • SALRC draft bill (n 52) cl 27.
  • SALRC draft bill (n 52).
  • TCB 2012 (n 7) s 9(3)(b) (emphasis added).
  • Aninka Claassens and Sizani Ngubane, ‘Women, Land and Power: The Impact of the Communal Land Rights Act’ in Claassens and Cousins, Land, Power & Custom (n 8) 173–75; Aninka Claassens and Sindiso Mnisi, ‘Rural Women Redefining Land Rights in the Context of Living Customary Law' (2009) 25 South African Journal on Human Rights 491. See also Ericka Curren and Elsje Bonthuys, ‘Customary Law and Domestic Violence in Rural South African Communities (2005) 21 South African Journal on Human Rights 607, 633; Oomen (n 20) 140; Tracy Higgins, Jeanmarie Fenrich and Ziona Tanzer, ‘Gender Equality and Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism' (2007) 30 Fordham International Law Journal 1653, 1700–01.
  • Claassens and Ngubane (n 102) 173–75; Curren and Bonthuys (n 102) 633; Higgins, Fenrich and Tanzer (n 102) 1700–01.
  • SALRC draft bill (n 52) cl 15.
  • SALRC Report (n 26) 24; SALRC draft bill (n 52) cl 15.
  • SALRC draft bill (n 52) cls 5, 8.
  • CGE, CALS and NLC Report (n 32) section 3.4.
  • SALRC Report (n 26) 11.
  • SALRC Report (n 26) 10.
  • Refer to the ‘Substantive Report on National Community Workshop on Traditional Courts Bill, 11–12 November 2009’ at 3, 6 and 5 for a summary of the concerns expressed by members of diverse rural communities and community-based organisations. (This workshop is described at: <http://www.lrg.uct.ac.za/public_dialogue/workshops/2009/> accessed 21 May 2012. The full report is on fle with the Law, Race and Gender Research Unit at the University of Cape Town.)
  • Tongoane (n 21) [25].
  • Tongoane (n 21) [106]. See also Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (SACC) [211].
  • Unfortunately, however, there is a question about how effectively Parliament can satisfy this requirement. By being consulted in the ‘amendment’ stage of the process, ordinary people could only have a very limited effect on the Bill in comparison with the traditional leaders, who had been involved in the Bill's formulation.
  • Shilubana (n 17) [45] (emphasis added).
  • SALRC Report (n 26) 10.

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