The department of justice is forging ahead with plans to establish traditional courts, with hereditary rulers set to play a prominent role in the administration of justice, particularly in rural areas, where they will be empowered to adjudicate on matters involving community members.
To this end, justice & constitutional development minister Mmamoloko Kubayi has published the draft traditional courts regulations and draft code of conduct— a major step in making the Traditional Courts Act, signed into law in 2023, operational.
The act seeks to affirm customary law values, strengthen the role of traditional courts, and expand access to justice.
Under the regulations, a traditional leader may designate any person to preside over a session of a traditional court, with provincial traditional court registrars set to be appointed.
For one to qualify to hold the position of a provincial traditional court registrar, a candidate has to have a national senior certificate or equivalent certificate, or a law degree with a minimum of five years’ experience and knowledge in traditional affairs.
Proceedings of the courts will also be recorded, with the record of the proceedings expected to be kept for a minimum period of seven years from the date of finalisation of the matter in question.
Parties who are dissatisfied with the outcome can approach the magistrate or the high court for recourse.
The traditional courts will be empowered to adjudicate on matters including theft if the amount involved does not exceed R15,000, assault if grievous bodily harm is not inflicted, and crimen injuria.
The courts will also proffer advice regarding customary law practices in respect of ukuThwala (forced marriage), initiation, customary law marriages, custody and guardianship of minor or dependent children, and succession and inheritance.
According to the act, a traditional court may not hear and determine a dispute that is being investigated by the police, or pending before another court, or has already been finalised by a court.
To promote equality, the act states that a traditional court must comprise women and men. To align with constitutional requirements, the act says the courts must, in fulfilling their mandate, consider the existence of systemic unfair discrimination and inequalities or attitudes that are contrary to constitutional values.
These would include the propensity of precluding meaningful participation in traditional court proceedings by any person or group of persons, particularly regarding gender, sex (including intersex), gender identity, sexual orientation, age, disability, religion and language.
The proposed code of conduct says presiding officers should recuse themselves from the matter if there is a conflict of interest or if they are related to any party to the matter.
The code further says that a traditional leader or a designated presiding officer may not request, solicit, or accept any reward, gift or favour from any member of the community who is part of the proceedings before the traditional court.
The National House of Traditional and Khoi-San Leaders (NHTKL) said it supports the uniform national legislation that regulates the role and functions of traditional leadership in the administration of justice across the country.
However, it said it opposes provisions in the Traditional Courts Act, such as the “opt-out” clause, which it says will undermine the authority and jurisdiction of traditional courts.
“The NHTKL advocates for the full recognition of traditional courts as formal courts of law, operating in line with African norms and values and offering accessible, speedy and less expensive dispute resolution to traditional communities,” NHTKL chair Thabo Seatlholo said.
“The House is opposed to the ‘opt-out’ clause that allows community members to ‘opt out’ of the jurisdiction of a traditional court, as community members are subject to the customary law of the community they reside in,” Seatlholo said.
The public has been invited to comment on the regulations and code, with the deadline for submissions set for mid-February.
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