Monograph 115: Traditional Justice in Practice, A Limpopo Case Study, Boyane Tshehla
Traditional leadership is an integral part of the current democratic
dispensation and consequently an institution that cannot be ignored. In
South Africa, and Africa as a whole, it is entrenched as a form of
governance.
Over time traditional leadership in South Africa has been influenced
by interventions and, at times, outright interference, by different
governments. Notable here is the influence of the apartheid government
that created the current system of traditional leadership by introducing
tribal councils and regional councils. The tribal councils are now
called traditional councils and these councils constitute the governance
of traditional communities, with functions ranging from the
distribution of land and the development of traditional communities, to
the administration of justice. While all these functions are important,
this monograph focuses on the administration of justice and crime
prevention only.
The monograph introduces the institution of traditional leadership.
It demonstrates how this system has been entrenched in the rural areas
and raises related questions (chapter two).
It deals with the policy and legislative framework that applies to
traditional leadership. It shows that traditional leadership as an
institution has been tremendously influenced by both colonisation and
apartheid systems of government. This is evident in that one of the most
important pieces of legislation applicable to traditional leadership is
the Black Administration Act (38 of 1927). More significant, however,
are developments that took place in the post-1994 era. After a
worryingly long period of time, an Act was passed in 2003 (Act 41 of
2003) to deal with the institution of traditional leadership
comprehensively.
The monograph then proceeds to present current day experiences as
observed in Mokopane, a traditional community in Limpopo province (chapter 3).
Two cases – about domestic disputes – are dealt with. These cases are
used to demonstrate how an ordinary traditional court deals with cases
and disputes. This paves the way for an interrogation of some of the
problems that pertain to a traditional court. The issue of gender (and
gender relations), as well as that of the procedure followed in the
traditional courts, are dealt with.
Crime prevention is one of the areas in which traditional leaders
play a significant role – at least so it is claimed. The role of
traditional leaders in crime prevention is examined and interrogated: do
traditional leaders indeed play such a role and, if so, are they being
effectively tapped into as a resource (chapter 4)?
Having confirmed, on the basis of the evidence presented, that
traditional leaders do indeed play a significant role in crime
prevention, the monograph goes on to assess feasible ways in which
traditional leaders can participate in improving their communities’
access to justice (chapter 5).
The monograph ends by concluding that traditional leadership is
entrenched in the rural areas and has a crucial role to play. However,
there are problems that need to be addressed in order to ensure that
justice prevails in these traditional communities.
