Policy & Legislative Framework on the Traditional Justice System & The Traditional Courts Bill

1. Policy & Legislative Framework on the Traditional Justice System & The Traditional Courts Bill Presentation to the Justice Committee on the brief outline of the key policy on the Traditional Courts System 13 May 2008 Department of Justice & Constitutional Development

2. Brief overview of the Traditional Courts System • Traditional Justice system is of ancient origin and its original character was influenced by colonialism and apartheid • The Black Administration Act regulated the system from 1929; • The main features of the BAA • Provided for separate justice Administration for Blacks • Commissioners as super chiefs exercised oversight over traditional leaders, when Commissioners Courts were abolished Magistrates Courts had appeal oversight • Selective jurisdiction over Africans and property belonging to Africans

3. Brief overview of the Traditional Courts System • Until 1994 Magistrates Courts could confirm sentence of traditional leaders • The emphasis to punish eroded the original restorative and reconciliatory role of traditional courts • Corporal punishment was the main punishment, and often meted out in a de-humanising environment • BAA was repealed in Nov 2005, save for the provisions that regulates the traditional courts system • The Traditional Courts Bill and the Policy Framework seek to harmonise the traditional court system with the Constitution

4. Key Policy aspects of the Traditional Courts System • System distinct from ordinary courts en sec 35 on Constitution (Its not modeled on the “idea of court as an institution for dispute resolution, but a system that promotes peace and harmony and resolve disputes whenever they have arisen) • In relation to its dispute resolution function it supplements the ordinary court system – and have its niche on ADR & Restorative Justice

5. Summary of inputs received during consultations & policy initiatives • Role of Trads in the administration of justice must not have a narrow focus on dispute resolution, must but must also promote nation building, social cohesion & reconciliation • Intended policy must reflect traditions & customs that promote nation building

6. Summary of Inputs & Policy initiatives • Policy must seek standardisation but but acknowledge and cater for unique circumstances (eg, not every area has Kings/Queens) • Although the preferred policy is to regulate administration of justice at senior traditional leader level, role of Headmen/women & family heads need to be recognised (system must acknowledge processes which take place before dispute is registered at Trad court)

7. Summary of Inputs & Policy Initiatives • Perceived contradiction between constitutional values and tradition & custom may be indicative of need to develop customary law (common law) (eg rituals & practices that offend the equality clause need to be aligned to the Constitution) • TradC & Mag Courts have constitutional mandate to develop customary law (sec 39 of Const)

8. Summary of Inputs … • Designation of STL & Kings and Queens: - may be conferred to HM/W by delegation - must coincide with installation which is by royal house • Policy initiative: Designation to coincide with recognition by Premier

9. Summary of Inputs … • Accountability – suspension & withdrawal for misconduct - There will be challenges where withdrawal does not follow removal - Code of conduct / adapt/amend existing codes Note: adaptation of existing Code will need consultation with premier will be necessary

10. Summary of Inputs … • Training: course to be prescribed in/ after consultation with structures of trads • Accredit attendance - no exams • Course content to relate to admin of justice Scope: to extend training to HM/W’s (who have been designated) Justice College to develop course content Dept must look at reviving training centre

11. Summary of Inputs … • Criminal & civil jurisdiction: Trad courts to have jurisdiction over all races; to deal with less serious cases which do not warrant incarceration. Small theft/malicious damage/assault common/crimen injuria/strayed animal); civil to have monetary ceiling & exclude DVA and nullity of marriages Observation: no real distinction between criminal and civil jurisdiction • Policy initiative: TJS to apply to all races residing/carrying business in traditional communities

12. Summary of Inputs … • Sanctions: compensatory rather than punitive; reconciliatory/self imposed orders/community service sanction (examples given) • Increased amount of fine (the figure of R2 000 repeated) • No corporal punishment, banishment or imprisonment Dissimilarities – very few STL’s advocate for sentence jurisdiction equal to magistrates

13. Summary of Inputs … • Appeal / Review - Traditional Leaders argued for strong appeal mechanism within the inst of traditional leaders (from STL to King/Queen//Panel of STL) - Appeal to ordinary courts not supported) - Review confused with appeal Dissimilarities: Consensus could not be reached Policy: Appeal to be excluded (concept of appeal not known in customary law) Review cannot be excluded - PAJA

14. Summary of Inputs … • Service of notices & other support Officers of Dept to be assigned to assist and support Trad courts (eg of service of notices, record keeping, correspondence in relation to referrals & diversion to Mag courts) Dissimilarities: none Comments: collapse of role of traditional police without alternative capacity weakened the traditional court system/ need to revive messenger-function of traditional police

15. Thank you …Questions & Answers