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Policy & Legislative Framework on the Traditional Justice System &

The Traditional Courts Bill

Presentation to the Justice Committee on the brief outline of the key policy on the Traditional

Courts System

13 May 2008

Department of Justice & Constitutional Development

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Brief overview of the Traditional Courts System Traditional Justice system is of ancient origin

and its original character was influenced by colonialism and apartheid

The Black Administration Act regulated the system from 1929;

The main features of the BAA- Provided for separate justice Administration

for Blacks- Commissioners as super chiefs exercised

oversight over traditional leaders, when Commissioners Courts were abolished Magistrates Courts had appeal oversight

- Selective jurisdiction over Africans and property belonging to Africans

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Brief overview of the Traditional Courts System- Until 1994 Magistrates Courts could confirm

sentence of traditional leaders- The emphasis to punish eroded the original

restorative and reconciliatory role of traditional courts

- Corporal punishment was the main punishment, and often meted out in a de-humanising environment

- BAA was repealed in Nov 2005, save for the provisions that regulates the traditional courts system

- The Traditional Courts Bill and the Policy Framework seek to harmonise the traditional court system with the Constitution

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Key Policy aspects of the Traditional Courts System System distinct from ordinary courts

en sec 35 on Constitution (Its not modeled on the “idea of court as an institution for dispute resolution, but a system that promotes peace and harmony and resolve disputes whenever they have arisen)

In relation to its dispute resolution function it supplements the ordinary court system – and have its niche on ADR & Restorative Justice

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Summary of inputs received during consultations & policy initiatives Role of Trads in the

administration of justice must not have a narrow focus on dispute resolution, must but must also promote nation building, social cohesion & reconciliation

Intended policy must reflect traditions & customs that promote nation building

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Summary of Inputs & Policy initiatives Policy must seek standardisation

but but acknowledge and cater for unique circumstances (eg, not every area has Kings/Queens)

Although the preferred policy is to regulate administration of justice at senior traditional leader level, role of Headmen/women & family heads need to be recognised (system must acknowledge processes which take place before dispute is registered at Trad court)

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Summary of Inputs & Policy Initiatives Perceived contradiction between

constitutional values and tradition & custom may be indicative of need to develop customary law (common law)

(eg rituals & practices that offend the equality clause need to be aligned to the Constitution)

TradC & Mag Courts have constitutional mandate to develop customary law (sec 39 of Const)

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Summary of Inputs …

Designation of STL & Kings and Queens:

- may be conferred to HM/W by delegation

- must coincide with installation which is by royal house

Policy initiative: Designation to coincide with recognition by Premier

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Summary of Inputs …

Accountability – suspension & withdrawal for misconduct

- There will be challenges where withdrawal does not follow removal

- Code of conduct / adapt/amend existing codes

Note: adaptation of existing Code will need consultation with premier will be necessary

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Summary of Inputs … Training: course to be prescribed in/

after consultation with structures of trads

- Accredit attendance - no exams- Course content to relate to admin of

justiceScope: to extend training to HM/W’s

(who have been designated)Justice College to develop course contentDept must look at reviving training

centre

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Summary of Inputs … Criminal & civil jurisdiction: Trad

courts to have jurisdiction over all races; to deal with less serious cases which do not warrant incarceration. Small theft/malicious damage/assault common/crimen injuria/strayed animal); civil to have monetary ceiling & exclude DVA and nullity of marriages

Observation: no real distinction between criminal and civil jurisdiction

Policy initiative: TJS to apply to all races residing/carrying business in traditional communities

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Summary of Inputs …

Sanctions: compensatory rather than punitive; reconciliatory/self imposed orders/community service sanction (examples given)

- Increased amount of fine (the figure of R2 000 repeated)

- No corporal punishment, banishment or imprisonment

Dissimilarities – very few STL’s advocate for sentence jurisdiction equal to magistrates

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Summary of Inputs … Appeal / Review

- Traditional Leaders argued for strong appeal mechanism within the inst of traditional leaders (from STL to King/Queen//Panel of STL)- Appeal to ordinary courts not supported)- Review confused with appeal

Dissimilarities: Consensus could not be reachedPolicy: Appeal to be excluded (concept of appeal not

known in customary law)Review cannot be excluded - PAJA

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Summary of Inputs …

Service of notices & other supportOfficers of Dept to be assigned to assist and support Trad courts (eg of service of notices, record keeping, correspondence in relation to referrals & diversion to Mag courts)

Dissimilarities: noneComments: collapse of role of traditional police

without alternative capacity weakened the traditional court system/ need to revive messenger-function of traditional police

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Thank you …Questions & Answers