Fair hearing without lawyers? The Traditional Courts Bill and the reform of traditional justice system in South Africa

Abstract

The Traditional Courts Bill has been introduced in the South African Parliament twice since 2008 and it has also been withdrawn twice for apparently infringing certain constitutional rights, including the right to fair hearing and legal representation. There are plans to reintroduce the Bill in Parliament soon. I argue in this article that traditional justice system should be understood within the customary law paradigm in which it operates. If this is done, it would be found that the exclusion of legal representation in traditional courts does not necessarily imply absence of fair hearing in such proceedings. I make some proposals for reconciling the apparent conflict between the constitutional right to fair hearing and the procedures in traditional courts by drawing on the analogy of the procedure of the Commission for Conciliation, Mediation and Arbitration. I conclude by making policy proposals that I think policy-makers should address as part of the reform of traditional justice system prior to reintroducing the Traditional Courts Bill to Parliament.