After 14 years of highly controversial amendments, South Africa’s parliament has finally approved the Traditional Courts Bill. The Bill now awaits the signature of the President to become law.
The Bill seeks to regulate the structure and functioning of traditional courts in a uniform way. It also sets out to transform the traditional justice system to conform with constitutional values.
The early controversy that trailed the Bill concerned its alignment with the Constitution’s Bill of Rights, particularly the rights to human dignity, equality and freedom from discrimination.
Later, controversy converged on its lack of an opt-out clause – that is permission for anyone who disputed the legitimacy of a traditional court (or its presiding judge) to refuse to submit to the court’s jurisdiction.
To be clear, the controversy is justified. Traditional courts are supposed to be informal, based on African customary laws, and as independent from State authority as possible.
Under the Bill, all levels of the traditional court system must be explored before a litigant may appeal to a magistrate’s court, which is a formal State court. This requirement practically commits people living in rural areas to the authority of traditional courts in their neighbourhood.
The problem is that the Bill recognised the much-maligned Bantustan boundaries contained in the Traditional Leadership and Governance Framework Act of 2003, where millions of poor, historically disadvantaged South Africans live.
Moreover, traditional courts are presided over by mostly male traditional leaders, many with questionable legitimacy. Some are direct descendants of apartheid-imposed rulers. Others are accused of being appointed without adherence to indigenous laws. An editorial in the South African weekly newspaper the Mail and Guardian declared that the Bill was based
on bigotry and patriarchy and possibly exists only to appease traditional leaders and to guarantee votes for the ruling party in the general elections in 2024.
In sum, supporters of the approved Bill claim that an opt-out clause would undermine the authority of traditional courts. For their part, opponents argue that people’s rights to fair trial supersedes the need to protect the authority of traditional courts.
But no one is asking a simple but profoundly weighty question: given their heavy State regulation, would traditional courts reflect indigenous ways of dispute resolution?
How traditional is the Bill?
Based on my research of indigenous laws, the answer is a simple no. In my view, criticism of the contents of the approved Bill obscure an important issue: South African legislators are steadily moulding indigenous laws into the image of western laws.
This is inappropriate. South Africans have a right to practice their culture without suffocating regulation by the State. South Africa is supposed to respect deep legal pluralism – that is the autonomous co-existence of legal orders.
Section 211(1) of the Constitution recognises the institution, status and role of traditional leadership, according to customary law.
For its part section 211(3) asks the courts to
apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
Section 211 thus implies that customary laws should operate independently.
Even though article 2 of the Bill seeks to “affirm the values of customary law and customs in the resolution of disputes, based on restorative justice and reconciliation,” it does so in order “to align them with the Constitution.”
In any case, indigenous laws predate the Constitution. The approved Bill is too controlling of indigenous behaviour – just like most laws that regulate customary laws. These include the Recognition of Customary Marriages Act of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act of 2009, the Communal Land Rights Act of 2004, and the Traditional Leadership and Governance Framework Act.
All these laws impose Eurocentric values of individualism, non-discrimination, and binary notions of gender equality on indigenous African laws. They reflect little regard for the compatibility of these values with the communal character of indigenous laws. These laws emerged in agrarian settings with complementary gender relations, welfare-oriented rights and obligations, and scant regard for individual property rights.
Another major issue I have with the Bill is that its prescriptive nature differs from the informal procedures of indigenous dispute resolution.
In addition, the structure of traditional courts ensures that they are simply extensions of the State. It’s true that they are to be presided over by headmen or headwomen, senior traditional leaders, and kings or queens. Nevertheless, appointments, salaries, training and adjudicatory principles are controlled by the State.
Lest we forget, the State is a colonial clone, since it retained colonial socioeconomic systems. It imposes European culture on Africans.
This is evident, once again, in the new Bill. Its judicial procedure gives little room for indigenous laws to thrive. Every significant aspect of the Bill is subjected to “constitutional values.”
Obviously, these regulatory values are successors of the colonial era requirement that customary laws must not be repugnant to natural justice, equity and good conscience.
What is South Africa’s legal identity?
The Bill demonstrates the successful cultural onslaught that European colonisers unleashed on Africans. It will be followed by the Single Marriage Statute and other laws. The wave of normative change is clearly here to stay. But Africans have the power to determine its direction.
