List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
2.7.2 The structure and functioning of the traditional justice system in South Africa .1 Traditional courts
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2.7.2 The structure and functioning of the traditional justice system in South Africa
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The University of Cape Town’s Race and Gender Research Unit (2011:2) raised a similar concern that only the Inkosi’s courts were recognised by the TCB, “yet it is well known that the traditional courts that do the bulk of the work are the headman’s courts”.
Gasa (2011:28) questions the rationale behind the proposal for a single layer of courts and asks: “does restoring the dignity of traditional justice system and affirmation of African cultural system mean that South Africa must introduce traditional courts with such sweeping powers? Does having a single layer of traditional courts actually make justice more accessible to the poor?” Despite these shortcomings, Ntlama and Ndima (2009:17) welcome the “TCB’s recognition of the valuable role played by traditional courts rooted in traditional communities and argue that this is an important step in promoting access to justice”.
2.7.2.2 Presiding officers of the traditional court
Bennett (2011:1053) notes that, traditional leaders continue to cater for people from rural areas as the formal courts are beyond the reach of most litigants, due to their alien procedures and language and high costs. The TCB refers to traditional leaders as the traditional council which is recognised “under section 3 of the Traditional Leadership and Governance Framework Act” (TLGF), 2003 (Act, 41 of 2003). The traditional court councils established in accordance with this Act (6) s 3 (2)(b), include women as elected representatives.
2.7.2.2.1 Composition of the traditional council
Mnisi-Weeks (2012:142) explains that the TCB identifies traditional courts to be “presided over by a king, or queen, senior traditional leader, headman or headwoman or a member of a royal family, who has been designated as a presiding officer of a traditional court by the minister in terms of section 4 of the TCB”. This includes a forum of community elders who are knowledgeable in customary law and meet to resolve disputes in ten different languages. Mnisi-Weeks (2012:142) argues that the TCB’s failure to address the composition of this council means that power is centred on one person; the TCB gives an individual the power to single- handedly make customary law “on a case-by-case basis”. The TCB leaves it to the presiding officer to determine his/her role, excluding others from the process. Section 3(2)(b) of the TLGF Act “requires that at least a third of members of the traditional council be women” (Williams and Klusener, 2013:281). The TCB
“does not provide for members of the traditional council to be appointed presiding officers”. In addition, the TCB does not guarantee women’s participation in traditional courts, either through self-representation or as decision-making council members (University of Cape Town’s Race and Gender Research Unit, 2011:1).
These factors potentially exclude women (Mnisi-Weeks 2012:142).
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Yet it is noteworthy that queens and headwomen may be presiding officers of traditional courts according to the proposed TCB. While the TCB is said to downplay rights of women, there is evidence of women leaders in traditional justice systems and political arenas of ancient Africa (Becker, 2006:34; Nzegwu, 2012:15).
Both Becker’s (2006:34) study in Namibia and Nzegwu’s (2012:15) study in Nigeria reveal that pre-colonial African societies were organised differently than western societies. Unlike western societies where women were perceived as inferior to men, which gave rise to the feminist movement in the west, ancient African societies revolved around complementarity of male and female roles in society. In pre-colonial Namibia men and women were seen as “inhabitants of different spheres in a complementary social duality” (Becker, 2006:34). This feature carried over to the original traditional justice system. Similarly, Nzegwu (2012:15) found that among Ibo men and women, a “dual-sex political system was underpinned by egalitarian ideas on which citizenship rested”. Based upon her study of Owambo polities in Namibia, Ubink (2011:55) found that colonisation and western missionaries contributed to the demise of the complementarity of male and female social, political and economic roles in pre-colonial Namibia so as normalise exclusion of women’s rights from traditional rule. Respondents in Ubink’s (2011:65) study perceived a difference in traditional courts presided over by headmen and headwomen. On the one hand women “were significantly more positive about traditional court proceedings in female-headed villages” and perceived “equal division of powers among the sexes”. On the other hand, men “were slightly more positive about traditional courts in male-headed villages, but indicated that they spoke up more easily in courts in female-headed villages” (p. 65).
There are a number of distinctions between western courts and traditional courts. McQuoid-Mason (2013:573) argues that, while presiding officers of traditional courts “are required to operate within the constraints of the Constitution, the western concept of judicial independence and impartiality does not apply because there is no separation of powers between the judicial, executive and legislative powers of chiefs”.
Ndima (2003:330) explains that the reason why traditional judicial matters in South Africa do not have similar boundaries as western systems, is because the “pursuit of communal collective and social solidarity was central to their existence”. Ndima adds that, in African societies, traditional leaders’ participation in all three organs of state never raised concerns about a possible lack of judicial independence and impartiality;
this was done in the interests of the common good. The concern around judicial impartiality is due to the elitist nature of the western adjudicatory system in which members of the public do not participate in judicial proceedings (Ndima, 2003:330). In contrast, Mnisi-Weeks (2012:142) believes, that allowing a person who makes the law to also apply it judicially, in addition to potentially administering or executing it, is controversial and is likely in breach of the separation of powers required by the Constitution. To Gasa (2011:28) the TCB is only “concerned with affirming the power, status and standing of traditional leaders”.
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The TCB requires the presiding officer to swear an oath of office before a magistrate. Section 15 states that
“a traditional leader who has been designated as a presiding officer of a traditional court must, subject to section 23(3)(a)(ii) or 23(3)(b)(ii) take the prescribed oath or make the prescribed affirmation that he or she will uphold and protect the Constitution before the magistrate’s court before he or she may perform any of the functions contemplated by the TCB”. Ntlama and Ndima (2009:20) argue that this provision diminishes the authority of traditional leadership. They add that it “impedes the autonomous development of customary law and makes it subject to validation by the prescripts of an outside system. It also appears to affirm the perception of the superiority of common law over customary law”.
2.7.2.2.2 Similarities with other African countries
Sudan and Burundi provide further examples of countries with plural legal systems. Makec (2007:136) notes that in Sudan, the council of elders “is an informal body that assists the chief in public and judicial matters. It sits as a form of court or as arbitrators to hear the parties and their witnesses and ultimately make a decision.
They render their services free in the public interest”. Makec (2007:136) observes that, due to the unrest in Sudan many people moved from the rural areas and “settled in the suburbs of Khartoum and other cities”.
They experienced “many legal disputes or offences affecting their family relations. However, they have no courts of their own to try these cases according to customary law. The provincial courts were given jurisdiction to settle such cases, but the presiding officers did not always have knowledge of customary law;
therefore they made use of the services of the council of the elders. Makec is of the view that recognition of the council will result in fair administration of justice under circumstances where the parties are not represented by lawyers”. Similar to South Africa and in contrast to the “adversarial system, where a judge is a mere referee and therefore does not take part in the judicial contest between the parties, a traditional court applying customary law plays a dual role” (Makec, 2007:134). The council of elders “plays the role of investigator to elicit the necessary evidence based on true facts. The desire to bring about conciliation or reach a compromise between the parties brings the court more in line with a mediation or arbitration system”.
Dexter and Ntahombaye (2005:13) note that in Burundi the council is called “Bashingantahe”. While in principle its services are free, once “the case had been settled, the parties offer bananas or sorghum beer to the council and everyone shares the drink. This is done as a sign of gratitude towards the council” and to celebrate and seal a newly-restored relationship. The role of Bashingatahe is “multidimensional, having a role in judicial, moral and cultural, as well as social and political affairs” and its decisions are based on customary law. Dexter and Ntahombaye (2005:11) explain that in Burundi the “king, the chief and the sub-
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chief all hold political, legislative and judicial powers. Each of these authorities has the council to advise them and to provide checks and balances. The king’s judgement is not subject to appeal”. Young people are encouraged to be members of the council: “the candidate will be observed by members of his community over a period of years, and his character would be tested. His use of the language and overall self-control are outward signs of his worthiness. He would undergo a gradual integration into the judicial functions of bashingantahe” (Dexter and Ntahombaye, 2005:12). Not unlike the situation in South Africa, women in Burundi are “excluded from being invested in their own right; they are invested with their husbands as
‘bapfasoni’, meaning a person of wisdom and integrity, but women do not have the right to deliberate with men nor render judgement” (Dexter and Ntahombaye, 2005:10).
2.7.2.3 Weaknesses of the traditional court and the traditional council
Tamanaha (2011:7) cautions that traditional courts should not be overly idealized. The norms enforced by these courts may be objectionable, “their process may be skewed, and decision makers may have warped motivations or be–self-interested or corrupt”. Makec (2007:134) warns that the traditional court and the council members may find it hard to remain impartial during court deliberations, especially when the parties are not represented by a lawyer. Wojkowska (2006:21-22) adds that traditional courts “ are often dominated by men, and tend to exclude women. Traditional councils are generally not elected, but are appointed or take office based on descent. Thus the checks or balances that generally exist in the formal system for the selection and appointment of judges are absent”.
Makec (2007:134) believes that, some scholars disregard the importance of the traditional justice system and are of the view that the system will disappear as modernisation increases. Makec argues that this “conception misunderstands the potential of traditional law to make a valuable contribution towards a state’s justice system”.
The lack of participation of women is a weakness of the traditional justice system. Williams and Klusener (2013:280) argue that it is important to have women as presiding officers, because “Women may recognise current social practices and articulate their interest and shape their culture from within. Additionally they are likely to point to changing social circumstances in order to argue against that which is no longer relevant”.
Hence, women should be given a voice as members of the traditional councils. However, Curran and Bonthuys (2004:21) argue that while “the inclusion of women in some customary courts is a necessary and welcome change, which should lead to the development of customary rules that benefit women, questions remain regarding the extent and pace of these changes”. Wojkowska and Cunningham (2010:98) observe that the traditional justice system is often “commanded by older men; this may reinforce power imbalances.
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Women and children are often highly discriminated against in customary proceedings”. Johnstone (2011:18) notes that the traditional justice system is accused of having departed from past practices by failing to protect women and that protective norms were eroded by colonization.
2.7.3 The procedures, processes and jurisdiction of the traditional justice system