Beyond the Traditional Courts Bill: Regulating customary courts in line with living customary law and the Constitution

Sindiso Mnisi Weeks

doi:10.17159/2413-3108/2011/v0i35a870

Abstract

This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.

Highlights

Beyond the Traditional Courts BillRegulating customary courts in line with living customary law and the Constitution. This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill
Problems exist with some of South Africa's customary courts
As the first port of call in the pursuit of justice for approximately 17 million South Africans, there is a need to fix them and to ensure that all customary courts operate in line with the Constitution

Summary

Beyond the Traditional Courts Bill

Regulating customary courts in line with living customary law and the Constitution. This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. There is a wealth of knowledge about customary courts – the way they operate and how they are used – from which we can draw useful principles for regulation This knowledge is found, firstly, in a survey of 20th century ethnographies;[1] secondly, in 20th century contestations brought to the civil courts to challenge traditional authority misconduct as well as state misinterpretations, distortions and impositions;[2] and, thirdly, recent research and consultations conducted by the. The underlying basis for the regulatory framework is the notion that individual choice is the means by which government might protect group identity and culture Recognition of both customary and state laws and authorities, whilst simultaneously allowing individuals to determine for themselves when they wish to appeal to these laws and authorities, gives necessary weight to the individual's right to withdraw from the community and its culture. It should ensure that accountability is due primarily to the community the court serves and only secondarily to government (while government should bear more of the responsibility of financing the courts than the community does)

THE FUNCTIONS AND USE OF CUSTOMARY COURTS

IMPLICATIONS FOR TCB REGULATORY FRAMEWORK

COMPONENTS OF A REGULATORY SYSTEM FOR CUSTOMARY COURTS

CONCLUSION