Abstract
This article discusses the latest version of the Traditional Courts Bill introduced by Parliament in 2017. It examines several fundamental objections to previous versions of the Bill to explain the progress that has thus far been made. In a much-welcomed improvement, the 2017 Bill provides a mechanism for individuals to opt out of the traditional justice system. Nonetheless, the recognition of the old apartheid homeland boundaries is perpetuated, as only courts convened by a traditional leader, whose power and jurisdiction are based on the old tribal boundaries, are recognised. A notable change is that there are no longer appeals to the magistrates’ courts. Parties may appeal a decision to a higher customary court or apply for a review of a decision to the high court. This calls into question the accessibility and affordability of appeals, and essentially locks people into the traditional justice system after the commencement of proceedings. The bar on legal representation continues under the 2017 Bill, which remains objectionable given that traditional courts may still deal with criminal matters. However, the powers of traditional courts in granting sanctions have been significantly circumscribed and regulated. Thus, while the 2017 Bill represents a significant development of previous versions of the Bill, there is still room for improvement.
Highlights
Traditional courts are at present still governed by the remaining provisions of the notorious Black Administration Act, which was promulgated in 1927.1 Unsurprisingly, the provisions are largely regarded as outdated and ignored.[2]
The recognition of the old apartheid homeland boundaries is perpetuated, as only courts convened by a traditional leader, whose power and jurisdiction are based on the old tribal boundaries, are recognised
This perpetuated the artificial tribal authority boundaries created during apartheid, as it bound individuals to attend the court of the traditional leader in whose jurisdiction they resided, regardless of whether they affiliated with the leader or disputed his legitimacy.[15]
Summary
This article discusses the latest version of the Traditional Courts Bill introduced by Parliament in 2017. Traditional courts are at present still governed by the remaining provisions of the notorious Black Administration Act, which was promulgated in 1927.1 Unsurprisingly, the provisions are largely regarded as outdated and ignored.[2] In 2008 the legislature introduced the Traditional Courts Bill,[3] which was withdrawn in 2011 due to criticism and public outcry. This criticism was based on the lack of public consultation in the drafting of the Bill, the gender composition of the courts and women’s participation in the resolution of. The article argues that while certain important, and very welcome, changes have been made to the 2017 Bill, there is still room for improvement before the Bill comes into force
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