Accessibility, Independence and Impartiality of the Traditional Court System

Abstract

A few metrics of procedural indigeneity such as accessibility, expeditiousness, informality, affordability, and lack of “cumbersomeness” account for the traditional court system’s suitability as a system for resolving conflicts among black, poor, marginalised and disadvantaged African communities. As a system that regulates the legal affairs of groups that constitute the majority of the South African population, traditional courts are a perfect instrument for catering for the needs of the mostly unsophisticated black citizens. These qualities by far outweigh the system’s relative weakness when it comes to the attributes of independence and impartiality of its courts, both of which—commendable as they are—are less necessary in a system that is based on communal participation and collective negotiation. Judicial independence and impartiality interpreted and understood in relation to the Western concept of the separation of powers is alien to the customary legal system. Traditional courts are community-based, characterised by open justice, and designed to settle disputes in their defined areas of jurisdiction. They were established from time immemorial for such purpose and, to further its colonial objectives, the colonial government recognised them through the enactment of the Black Administration Act, 38 of 1927. There was a complete disregard for the views of the adherents to customary legal systems when legislating on the system and people's lives. The promulgation of such an Act brought about legal dualism in South Africa: common law and customary law. The Black Administration Act was enacted to administer the affairs of blacks and control the administration of traditional institutions and courts. The Black Administration Act discriminated between litigants based on race and dispensed inferior justice to blacks. During the apartheid system, various discriminatory laws were promulgated, resulting in the establishment of homelands and independent states within South Africa. This gave rise to disparate laws governing black people and their court system. The Constitution and the legislation specifically dealing with the customary legal system have ended discriminatory laws and social order that characterised colonialism and apartheid. Traditional courts are well-placed to create, enhance, and facilitate access to courts for all people, regardless of race, colour, gender, or any socio-economic diversity. This article intends to outline the effectiveness of the traditional system and to also address criticisms levelled at the traditional legal system, based on variations in practice and alleged exclusion of women from traditional justice mechanisms. These criticisms can be addressed effectively by traditional court systems aligned and dedicated to equality, democracy, and human rights protection. They can also be addressed through harmonising, integrating, and unifying customary law, common law, and constitutional values.