28 Aug 2007: ISS Today: South Africa: The Traditional Court - Time for Decisive Action?

28 August 2007: The South Africa Traditional Court - Time for Decisive Action?

 

South Africa seems to have recognised the resilience and popularity of the traditional court. This is a court that is based in a traditional community and deals with cases that affect members of that community. These courts derive their legitimacy from culture and tradition. Moreover, they are accessible to the people who need to use them. The language used in the courts is, without variance, the language spoken and understood by members of the traditional community. It has been strongly argued that these courts’ approach to justice is restorative. In terms of this argument, the goal a traditional court is not to establish who is in the wrong and then punish him/her, but instead to establish the root causes of the dispute with the aim of restoring relationships that may have suffered as a result of the dispute. Recent research shows that indeed this is the approach of many a traditional court.

 

Traditional authorities, and traditional courts in particular, render an indispensable service to the democratic state. They nurture one of the core tenets of democracy, namely the rule of law. It is an established fact that justice in the rural areas of South Africa, as in many other countries on the African continent, is served by traditional structures of justice. Prominent among these is the traditional court. It is estimated that between 70% and 80% of cases addressed in rural areas are dealt with by traditional structures. There is therefore no question of the entrenched-ness of traditional structures of justice in rural communities.

 

What worries many people is the concern that there are not enough control mechanisms in structures like the traditional court. Traditional courts do not necessarily have the safeguards necessary to ensure equal justice and transparency. While there is certainly some validity in these concerns, the absence of such control mechanisms cannot be blamed on the traditional courts, and therefore this should not be a justification ignoring or marginalising these structures.

 

What needs to happen—and the state should take the lead here—is that these structures must be strengthened and supported. While it is true that traditional leaders do get some support from the state, current levels of support are inadequate, especially when it comes to the administration of justice. Support should be provided in the form of training and resources. Many traditional leaders bemoan the fact that while they are expected to deliver justice in their communities there is very little training on offer. This is not to suggest that traditional leaders should be trained in terms of substantive laws that have to be applied in their courts. Any attempt to do this will be doomed to fail, for the basis of a traditional justice is custom and tradition as practiced by a particular community. The training sought by many traditional leaders relates to acceptable procedures. For instance, there are constitutional and legal imperatives that traditional leaders are expected to follow, but many of them are not aware of this. A pertinent example here is the abolition of corporal punishment which took place in 1997. While corporal punishment has been abolished, many traditional leaders have not been trained regarding alternative forms of punishment.

 

It is only fair that the role played by traditional leaders, especially in the administration of justice, be afforded the support it deserves. Given that the South African state courts (both civil and criminal) are overburdened, there is no doubt that the traditional court can make a significant contribution to the justice system. Conversations with traditional leaders (in both the national and provincial houses) reveal that traditional leaders are willing and waiting for the state to engage with them. The Department of Justice and Constitutional Development has also shown an increased interest in developing the traditional court. However, there does not seem to be a continuous engagement between the state and traditional leaders regarding the functioning of the traditional court. This results in some traditional leaders feeling neglected by the state.

 

It is time for decisive action: if the South African government believes that traditional courts are legitimate structures then they should put concrete programmes in place to develop and regulate these courts. If not, then plans should be developed to accommodate the workload of traditional courts in the state courts—undoubtedly a difficult option. But it is both unfair and unwise to keep traditional courts at the periphery of the administration of justice as is presently the case.

 

Boyane Tshehla, Crime and Justice Programme, ISS Tshwane (Pretoria)