Customary courts are valuable institutions. They provide millions of South Africans with access to justice they would not otherwise have. They are more accessible and affordable than existing ‘formal’ courts, and in general reflect the values of the people who choose to use them.

However the Traditional Courts Bill, in the form that it was introduced in the National Assembly in recent months, failed to recognise customary dispute resolution processes at the local levels where the system works best, and provided no role for the community councils, which are the bedrock of the system. Instead it vested power exclusively in “senior traditional leaders” as presiding officers. It enabled a traditional court to order any person to perform unpaid services “for the benefit of the community”. Given claims by traditional leaders that customary law requires their “subjects” to provide free labour “in the fields of the realm”, this was cause for concern. The Bill also enabled the court to deprive an “accused person or defendant of any benefits that accrue in terms of customary law or custom”. Land rights are one such entitlement, and community membership is another.

The powers given to the court (in the person of the presiding officer) overrode historical customary protections, which require that issues as serious as eviction and banishment first be debated and endorsed at various levels, including at a pitso, or gathering of the whole community.

At the heart of the Bill were the contested tribal authority boundaries, which are made the basis of the court’s jurisdiction. Tribal authorities were created by the apartheid Bantu Authorities Act of 1951 as the primary building blocks of the Bantustan system. Their imposition led to rural uprisings throughout the country.  Many people were subsumed within “tribes” with which they had no connection, and forced removals were used to separate people into ethnically separate “homelands”. Tribal authorities were subsequently converted into “traditional councils” by the Traditional Leadership and Governance Framework Act 2003.

The Traditional Courts Bill provided traditional leaders with the unilateral power to create and enforce customary law within the bounded jurisdictional areas it confirms. Instead of focussing on what unites people, it reinforced the constructs of ethnic difference and insider-outsider status that can only further divisions in our country.

The South African Law Commission had previously conducted extensive research and public hearings about the shape that customary courts should take in post-apartheid South Africa. In 2003 the Commission produced a report and a draft bill. These dealt, among others, with the problem of exclusion and bias against women in customary courts. The Commission recommended that women’s representation in the councils that hear and decide disputes be guaranteed by law.

The current Bill did not include this requirement, and in fact provided no role for councils. Instead it centralised decision-making power directly to “senior traditional leaders”. The Bill also ignored the Law Commission recommendation that courts operating at village level be recognised. The memorandum that accompanied the Bill also explained that traditional leaders were the only rural constituency consulted about the Bill.

Also controversial for the chiefs was the Commission’s recommendation that people should be allowed to “opt out” of customary courts. The current bill actually went further by making it an offence for anyone within the jurisdiction of a traditional court (even someone who is only passing through) not to appear when summoned by the presiding officer.

This undermines the consensual character of customary law. People currently recognise and use a range of different dispute resolution forums in rural areas. These include village councils, development forums, clan meetings, civics and magistrate’s courts. The existence of these different levels and types of dispute resolution forum enhances accountability by enabling people to sidestep courts they consider to be illegitimate, or courts reputed to be biased.

It also enables the development of a vibrant “living law” that reflects all the voices currently engaged in debating changing social realities and finding ways to integrate underlying customary precedents with the values of equality and democracy that informed the struggle against apartheid and are now guaranteed by the Constitution.

If the primary purpose of the Bill is to support restorative justice and the development of “living customary law” it should recognise the full range of customary courts that currently operate.

Aninka Claassens