The Traditional Courts Bill was first tabled and discussed at the Justice and Correctional Services Committee in Parliament (“the Committee”) on 6 March 2019 and it was then passed by the National Assembly on 12 March 2019.

The Bill cites, as its guiding principles, a need to bring traditional courts and their functions in line with the Constitution, particularly with regard to the right to human dignity, the right to equality, the advancement of human rights and freedoms, the promotion of the principles of non-racialism, non-sexism, the freedom of sexual orientation, the freedom of identity and religion, and to promote the principle of restorative justice through mediation and conciliation.

The Bill provides a list, which is non-exhaustive, of customs and practices which are prohibited on the basis that they infringe on the dignity, equality and freedom of persons, including “LGBTI discrimination”, homophobia, discrimination against persons who are mentally or physically disabled, discrimination against persons with albinism and discrimination against unmarried persons.

The Bill provides that any person may institute proceedings in respect of a dispute in any traditional court. The limitation to this, however, is that the nature of disputes which a traditional court may hear is limited to the following:

  • crimen injuria (viz. the unlawful impairment of another’s dignity);
  • matters relating to the practice of “ukuThwala”, initiation, customary law marriages, custody/guardianship of minor children, succession and inheritance and customary law benefits;
  • theft, malicious damage to property, burglary and receiving stolen property, subject to the value in question not exceeding R15 000;
  • customary law matters where the matter in dispute does not exceed an amount determined by the Minister from time to time by notice in the gazette;

Specific exclusions include:

  • cases which are being investigated by SAPS; or
  • cases which are pending before another traditional court or any other court; or
  • cases which have been finalised by any other competent criminal or civil court.

In terms of the Bill, the traditional court system is constituted by the various levels of traditional leadership as contemplated in the Traditional Leadership and Governance Framework Act of 2003. It also provides that a traditional court is presided over by a traditional leader or any person designated by the traditional leader.

One point of concern or contention to various commentators and political parties is that the Bill does not contain a formal “opt-out” clause in instances where a party to the proceedings is not inclined to submit to the jurisdiction of a traditional court. It also does not provide, for instance, for the transfer of a matter to a Magistrate’s Court. The possible transfer of matters to a Magistrate’s Court is, however, left to a justice of the peace who, after being apprised of the failure of a party to attend to court, is empowered to “request” the traditional court to have the matter transferred to a Magistrate’s Court. This raises a concern in that this provision, which appears to be non-mandatory, does not seem to provide a solid solution to persons who do not wish to be subject to the jurisdiction of a traditional court.

The Bill also provides that parties to a dispute may be assisted by a person of their choice, but none of them may be represented by a legal practitioner, and hearings are open to all members of the community.

The Bill empowers the traditional court to make the following orders:

  • an order directing that the matter be submitted to the national prosecuting authority for the possible institution of criminal proceedings;
  • a non-monetary order for the rendering of a service, subject to the consent of both parties, if the party against whom the order is made cannot comply with a financial order;
  • some form of community service, provided that no service may be rendered to a traditional leader or family;
  • an order in monetary terms or otherwise, including livestock, provided that any such order may not exceed the value of the damage giving rise to the dispute;
  • accept an unconditional apology as part of a settlement between parties or it may simply issue a reprimand.

The Bill provides that, if an order of a traditional court is not complied with, the clerk of the court must refer the matter to a justice of the peace, who is empowered to summons the defaulting party to a traditional court for purposes of having the matter transferred to a Magistrate’s Court. In this instance, the matter is to be dealt with afresh in the competent Magistrate’s Court.

The Bill also provides that a party to the proceedings may take the matter on review to the High Court, but such a review is limited to procedural issues, and may not concern the merits of the case. If it concerns the merits, the aggrieved party may, after exhausting all traditional court system appeal procedures, “refer” the matter to a Magistrate’s Court, which is entitled to hear evidence and to make whatever ruling it deems appropriate.

Click this link for the Bill:

Author: Tembelani Vabaza