January 21, 2003

Law proposed for traditional courts

Traditional courts should have full powers to hear certain criminal and civil matters, the SA Law Commission proposed in a draft bill published on Tuesday, January 21.

In a report released in Pretoria, the commission said such courts should be able to impose penalties such as fines and community service. They should, however, not have greater punitive powers. These courts should also not be allowed to determine matters relating to the dissolution of marriages, and the guardianship, custody and maintenance of minors.

In a statement, the commission said customary courts run by traditional leaders were inexpensive, simple, informal, accessible and conversant with the community and its laws.

The administration of justice in rural South Africa was predominantly carried out by chiefs' courts that operated largely on the basis of customary law. At present, these courts are governed by the statutes of the former apartheid government and the former homelands and self-governing territories.

The proposed new legislation, drawn up at the request of Justice Minister Penuell Maduna, seeks to consolidate and modernise the regulation of traditional courts. "The bill recommends that customary courts should be established and that they should have full powers of hearing and determining cases in both criminal and civil matters subject to limitations," the commission said. "It is recommended that headmen's tribunals, which are currently not recognised as courts, should be given formal recognition."

The report proposes that a hierarchy of customary courts be recognised and established. Such courts may range from the headman's court to the court of the paramount chief or king of a particular ethnic group. The composition of these courts should be in accordance with the customary law of the area concerned. They should have regard for the Constitutional values of democracy and equality, and include a "reasonable proportion" of women.

Traditional courts apply customary law, and any other law which the courts may be authorised to administer. "Thus in criminal cases, the court may apply the common law or statutory law," says the commission's report. Customary courts should also have the power to summon witnesses and to punish for contempt of court. They should keep a record of their proceedings, consisting of a summary of each case heard. A list of cases completed should be submitted to a registrar for such courts every three months. Each customary court should open a special account where fines should be deposited. The account should be administered by the traditional authority concerned, and the money be used for the development needs of the community. The Minister of Justice should fix a ceiling on the maximum fine from time to time. The commission said a defendant should have the right to opt out of the jurisdiction of a customary court in favour of any other court. In civil matters, those involved should be able to obtain a transfer to another court by application to the registrar, says the report. (SAPA, Johannesburg)

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